TOWNSEND v. TRIERWEILER
Filing
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MEMORANDUM AND ORDER DENYING THE PETITION FOR HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GEOFFREY TOWNSEND,
Petitioner,
Case No. 16-12613
v.
JACK KOWALSKI,1
HON. AVERN COHN
Respondent.
_________________________________/
MEMORANDUM AND ORDER DENYING THE PETITION FOR HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Geoffrey Townsend,
(Petitioner), is a state inmate serving concurrent sentences of 10 to 15 years each for six
counts of third-degree criminal sexual conduct, M.C.L. § 750.520d(1)(a)(sexual
penetration; victim is at least 13 but under 16). Petitioner, through counsel, filed a petition
for a writ of habeas corpus claiming that he is incarcerated in violation of his constitutional
rights. Respondent, through the Attorney General’s Office, filed a response, arguing that
Petitioner’s claims lack merit. For the reasons which follow, the petition will be denied.
II. Procedural History
Petitioner was convicted following a jury trial. He filed an appeal of right. The
Michigan Court of Appeals affirmed his conviction and sentence. People v. Townsend,
No. 319604, 2015 WL 1227682 (Mich. Ct. App. Mar. 17, 2015). The Michigan Supreme
Court denied leave to appeal in a standard order. People v. Townsend, 498 Mich. 920
(2015).
1
The caption is amended to reflect the current warden of Petitioner’s incarceration.
Petitioner has filed a petition for a writ of habeas corpus, raising the same claims
presented on direct appeal, as follows:
I. The trial court erred by admitting the entire written hearsay statement of the
complaining witnesses and that the MRE 801(d)(1)(b) exception to hearsay
does not apply.
II. The trial court erred in denying the motion for judgment notwithstanding the
verdict when the great weight of the evidence was insufficient to establish
beyond a reasonable doubt that the defendant/appellant was guilty of the
offenses charged.
III. The trial court erred in denying the defendant/appellant’s motion for new
trial based on newly discovered evidence or based on trial counsel’s failure to
present the evidence at trial.
IV. The trial court erred in assessing points for OV 8 and OV 13 at the time of
sentencing.
V. The trial court erred in sentencing the defendant/appellant well above the
recommended sentencing guidelines when there was no substantial and
compelling reason to do so.
III. Facts
The material facts leading to Petitioner’s conviction are recited verbatim from the
Michigan Court of Appeals’ opinion affirming his conviction, which are presumed correct
on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d
410, 413 (6th Cir. 2009):
Defendant was a Detroit Police Officer who was involved with a program called
“Reality Check” that helped struggling children. Through his involvement in this
organization, he met RW and CL, whom he sexually assaulted on various
occasions.
People v. Townsend, 2015 WL 1227682, at *1.2
IV. Standard of Review
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Because the victims were minors at the time of the offense or relatives of minors
with the same name, the Court refers to the individuals by their initials as did the Michigan
Court of Appeals. See Fed. R. Civ. P. 5.2(a).
2
28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim–
(1)
resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A state court’s decision is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court
has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 40506 (2000). An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id.
at 409. A federal habeas court shall not “issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.” Id. at 410-11.
“[A] state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). The Supreme Court emphasized “that even a strong case for
relief does not mean the state court’s contrary conclusion was unreasonable.” Id. at 102
(citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d),
“a habeas court must determine what arguments or theories supported or...could have
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supported, the state court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision” of the Supreme Court. Id. To obtain habeas relief in
federal court, a state prisoner is required to show that the state court’s rejection of his
claim “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at
103.
V. Petitioner’s Claims
A. Claim 1 - Hearsay
In his first claim, Petitioner argues that his right to a fair trial was violated when the
trial court allowed into evidence the hearsay statements of the complaining witnesses
which should have not been admissible pursuant to M.R.E. 801(d)(1)(b).
The Michigan Court of Appeals denied this claim finding that any error was
harmless because the victims testified about the alleged sexual abuse at trial; therefore,
their prior consistent statements only reiterated the victims’ testimony that they had been
sexually abused. The Michigan Court of Appeals further found that because their prior
consistent statements were mere cumulative evidence, admission of the statements did
not prejudice Petitioner. People v. Townsend, 2015 WL 1227682, at *1.
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Because the admissibility of evidence under Michigan’s hearsay rules is not cognizable
in a habeas corpus proceeding. the admission of this evidence in violation of Michigan’s
rules of evidence would not entitle Petitioner to relief.
Furthermore, the admission of a prior consistent statement when the declarant is
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available for cross-examination at trial, as here, is not a question that rises to the level of
a constitutional violation for purposes of habeas corpus relief. There is no violation of the
Sixth Amendment’s Confrontation Clause when the witness testifies at trial and is subject
to unrestricted cross-examination. United States v. Owens, 484 U.S. 554, 560 (1988).
Because the victims testified at Petitioner’s trial and were subject to cross-examination,
the admission of their out of court statements to the police did not violate petitioner’s
Sixth Amendment right to confrontation.
In sum, Petitioner’s claim about the admission of the complainants’ prior
consistent statements to the police involves at best an error of state law that is not
cognizable in federal habeas review. The Michigan Court of Appeals’ rejection of
Petitioner’s claim was not based on an unreasonable determination of the facts or
contrary to Supreme Court precedent. Thus, Petitioner is not entitled to habeas relief on
his first claim.
B. Claim 2 - Great Weight of the Evidence
Petitioner next contends that his rights were violated because the verdict was
against the great weight of the evidence because the victims’ testimony was incredible in
light of the other evidence presented in this case, as well as the fact that there was
evidence which suggested that the victims had a motive to falsely accuse petitioner of
sexually assaulting them.
A federal habeas court has no power to grant habeas relief on the ground that a
state conviction is against the great weight of the evidence. See Cukaj v. Warren, 305 F.
Supp. 2d 789, 796 (E.D. Mich. 2004); Dell v. Straub, 194 F. Supp. 2d 629, 648 (E.D.
Mich. 2002); See also Nash v. Eberlin, 258 F. App’x 761, 764, n. 4 (6th Cir. 2007)((“a
manifest-weight-of-the-evidence argument is a state-law argument”). Because the
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Supreme Court has never recognized a state prisoner’s constitutional right to a new trial
because the verdict was against the great weight of the evidence, petitioner’s contention
concerning the weight of the evidence fails to state a cognizable federal claim.
Moreover, attacks on witness credibility are simply challenges to the quality of the
prosecution’s evidence not to the sufficiency of the evidence. See Martin v. Mitchell, 280
F.3d 594, 618 (6th Cir. 2002). An assessment of the credibility of witnesses is generally
beyond the scope of federal habeas review of sufficiency of evidence claims. See Gall v.
Parker, 231 F.3d 265, 286 (6th Cir. 2000). Petitioner’s insufficiency of evidence claim
rests on an allegation of the victims’ credibility, which is the province of the finder of fact.
Petitioner is therefore not entitled to habeas relief on his second claim.
C. Claim 3 - Newly Discovered Evidence
1.
Petitioner next claims that his due process rights were violated when the trial court
denied him motion to new trial based on newly discovered evidence. The alleged newly
discovered evidence is testimony from Tamika Duncan and Melvin Kemp and documents
pertaining to DNA testing which were not presented at trial. In the alternative, Petitioner
argues that trial counsel was ineffective by failing to present this evidence at his trial.
As to the witness testimony, Duncan says that had she been called to testify, she
would have said that the testimony of RW and her mother was false. Duncan contends
that RW was kicked out of the Explorers Program and brought the charges against
Petitioner when he would not let her back into the program. Duncan further contends
that during a phone conversation with RW’s mother, RW interrupted the conversation
which involved mention of the women Petitioner was sleeping with, including the mention
of a minor. According to Duncan, RW stopped the conversation and interjected that such
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allegations were false.
As to Kemp, he would have testified that he was raking leaves on the property
and witnessed Petitioner and the second victim sitting in Petitioner’s truck. According to
Kemp, neither entered the house and he did not view any inappropriate behavior.
As to the DNA evidence, Petitioner says that the results of the DNA samples,
which were negative for seminal fluid and a DNA match, would have undermined the
testimony provided at his trial.
The Michigan Court of Appeals initially found the evidence was not newly
discovered evidence and then rejected Petitioner’s ineffective assistance of counsel
claim as follows:
In the instant case, defendant relies on impeachment evidence in the form of
statements from Tamika Duncan and Melvin Kemp, and evidence implicating
the credibility of one of the other-acts witnesses (including the lack of DNA
evidence that defendant assaulted her). Defendant conclusively states that
this evidence is newly discovered. However, he provided neither elaboration
of nor support for that bald assertion. In contrast, the prosecution provides a
detailed explanation of how this evidence was provided to defendant in
pretrial discovery. In light of defendant’s silence on this matter, we cannot say
that he has demonstrated this evidence was, in fact, newly discovered.
Defendant conclusively contends that, with the use of reasonable diligence,
he could not have discovered or produced this evidence at trial. Yet,
defendant again has not demonstrated the truth of that assertion. In fact, he
provides no explanation for why he did not produce this evidence at trial.
Thus, defendant has failed to satisfy the first and third prongs of the newly
discovered evidence test.
Defendant also has failed to demonstrate that an exculpatory connection
exists between the witnesses’ testimony and the new impeachment evidence,
or that a different result is probable on retrial. At best, this “newly discovered”
evidence amounts to relatively minor impeachment evidence. Specifically,
Tamika Duncan’s proposed testimony is an attempt to impeach RW and her
mother about a phone conversation, and imply that RW was kicked out of a
program. Yet, Duncan’s statements do not amount to the “necessary
exculpatory connection” that goes to the heart of RW’s testimony, as she did
not proffer any knowledge regarding the sexual assaults. Next, Melvin
Kemp’s proposed testimony is an attempt to impeach CL’s testimony about
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going into defendant’s home on the day of the assault. However, CL did not
recall the specific date the incident occurred, so there is no way to establish
that Kemp was the same person raking leaves that day. In regard to the
remaining evidence, it goes toward impeaching the other-acts witness, not
RW or CL.
Thus, even if we were to assume that this evidence was “newly discovered,”
it does not amount to “the rare case in which (1) the necessary exculpatory
connection exists between the heart of the witness’s testimony at trial and the
new impeachment evidence and (2) a different result is probable on retrial.”
Contrary to the cases defendant cites on appeal, he has offered no evidence
of a recanting witness, and it is defendant’s burden to prove all elements of
the newly discovered evidence test[,] .
We likewise reject defendant’s ineffective assistance of counsel claim. Even
if we were to agree that the performance of defense counsel fell below an
objective standard of reasonableness, a different result is not reasonably
probable on remand. This “newly discovered” evidence, at most, amounts to
relatively minor impeachment evidence. In contrast, the evidence at trial of
defendant’s guilt was overwhelming. The two victims, as well as the three
other-acts witnesses, were between the ages of 13 and 15, were in “Reality
Check,” and testified that defendant sexually assaulted them on several
occasions. Further, it is not as if defense counsel failed to impeach these
witnesses. In fact, defense counsel conducted searching cross-examinations,
continually attempting to highlight the lack of the victims’ credibility.
In light of the overwhelming evidence of defendant’s guilt, we cannot say that
the evidence he highlights on appeal would have any effect on the outcome
of the proceedings. Defendant has not demonstrated that he was denied the
effective assistance of counsel. In light of our analysis, we do not find that a
remand for a Ginther hearing warranted.
People v. Townsend, 2015 WL 1227682, at **3-4 (internal citations omitted).
2.
As an initial matter, “in light of the Constitution’s silence on the subject of new
trials [and] the historical availability of new trials based on newly discovered evidence,”
Petitioner’s claim that he is entitled to a new trial based on newly discovered evidence is
noncognizable on habeas review. Herrera v. Collins, 506 U.S. 390, 391 (1993). Thus,
Petitioner is not entitled to habeas relief on this ground.
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3.
Petitioner alternatively argues that trial counsel was ineffective by failing to produce
Duncan and Kemp to testify at his trial and by failing to present the DNA report which was
inconclusive.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, Petitioner must demonstrate that, considering all of the
circumstances, counsel’s performance was so deficient that the attorney was not
functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Petitioner must overcome the presumption that,
under the circumstances, the challenged action might be sound trial strategy. Strickland,
466 U.S. at 689. Second, Petitioner must show that such performance prejudiced his
defense. Id. To demonstrate prejudice, Petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.
More importantly, on habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect but
whether that determination was unreasonable-a substantially higher threshold.’” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). “The pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard.” Harrington v. Richter, 562 U.S. at 101.
Indeed, “because the Strickland standard is a general standard, a state court has even
more latitude to reasonably determine that a defendant has not satisfied that standard.”
Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to
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the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a Strickland
claim brought by a habeas petitioner. Id. This means that on habeas review of a state
court conviction, “[A] state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland standard itself.”
Harrington, 562 U.S. at 101.
Petitioner is not entitled to habeas relief on his ineffective assistance of counsel
claim for two reasons. First, the witnesses were not actually present when any of the
alleged sexual assaults took place. Because neither witness was present when the
assaults took place between Petitioner and the victims, they could not have exonerated
Petitioner of the crime. Thus, counsel was not ineffective in failing to call them as
witnesses. Second, to the extent that Petitioner claims that these witnesses could have
impeached the victims’ credibility concerning the validity of the sexual assaults, such
evidence would have been cumulative of evidence that had already been introduced to
challenge the victims’ credibility.
As the Michigan Court of Appeals found, Duncan’s statements did not amount to a
‘necessary exculpatory connection’ that went to the heart of RW’s testimony, as Duncan
did not propose to offer any testimony regarding the sexual assaults. Kemp’s proposed
testimony was an attempt to impeach CL’s testimony about going into Petitioner’s
residence on the day of the assault. However, CL did not recall the specific date the
incident occurred, so there is no way to establish that Kemp was the same person raking
leaves that day. The proposed testimony would have involved impeaching the victim on
a collateral matter and counsel was not ineffective for failing to impeach the victim about
such an inconsistency.
Overall, the court of appeals reasonably found that the trial court did not err in
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denying petitioner a new trial based on newly discovered evidence and that Petitioner
failed to sustain his burden of demonstrating that he was denied the effective assistance
of counsel. Petitioner is not entitled to relief on his third claim.
D. Claims 4 and 5 - Sentencing Guidelines
Petitioner’s fourth and fifth claims raise errors in sentencing. In his fourth claim,
Petitioner contends that OV 8 of the Michigan Sentencing Guidelines was incorrectly
scored. In his fifth claim, Petitioner contends that OV 13 of the Michigan Sentencing
Guidelines was incorrectly scored.
Petitioner’s claims that the state trial court incorrectly scored or calculated his
sentencing guideline range under the Michigan Sentencing Guidelines are not
cognizable claims for federal habeas review because they are state law claims. See
Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007); Howard v. White, 76 F. App’x 52,
53 (6th Cir. 2003); McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006).
Petitioner had “no state-created interest in having the Michigan Sentencing Guidelines
applied rigidly in determining his sentence.” See Mitchell v. Vasbinder, 644 F. Supp. 2d
846, 867 (E.D. Mich. 2009). Petitioner is therefore not entitled to habeas relief on his
fourth or fifth claims.
VI. Conclusion
For the reasons stated above, the state courts’ rejection of Petitioner’s claims did
not result in decisions that were contrary to Supreme Court precedent, an unreasonable
application of Supreme Court precedent, or an unreasonable determination of the facts.
Accordingly, the petition for a writ of habeas corpus is DENIED.
Furthermore, reasonable jurists would not debate the Court’s assessment of
petitioner’s claims, nor conclude that the issues deserve encouragement to proceed
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further. The Court therefore DECLINES to grant a certificate of appealability under 28
U.S.C. § 2253(c)(2).3 See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 10/23/2018
Detroit, Michigan
3
“The district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28
U.S.C. foll. § 2254.
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